IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN MILWAUKEE DIVISION
ERIC O’KEEFE, and WISCONSIN CLUB FOR GROWTH, INC.,
Plaintiffs, Civil Case No. ______v.
FRANCIS SCHMITZ, in his official and personal capacities, JOHN CHISHOLM, in his official and personal capacities, BRUCE LANDGRAF, in his official and personal capacities, COMPLAINT DAVID ROBLES, in his official and personal capacities, JURY TRIAL DEMANDED DEAN NICKEL, in his official and personal capacities, and GREGORY PETERSON, in his official capacity,
Defendants.
Now Come the above-named plaintiffs, Eric O’Keefe (“O’Keefe”) and Wisconsin Club for Growth, Inc., (“WCFG”) (collectively, “Plaintiffs”), by and through their attorneys, and make their Complaint against Defendants Francis Schmitz (“Schmitz”), John Chisholm (“Chisholm”),
Bruce Landgraf (“Landgraf”), David Robles (“Robles”), and Dean Nickel (“Nickel”), in their respective official and personal capacities (collectively, “Defendants”), and against Gregory
Case 2:14-cv-00139 Filed 02/10/14 Page 1 of 76 Document 1 Peterson (“Peterson”), in his official capacity only.1 This action arises under the First and
Fourteenth Amendments to the United States Constitution, the Civil Rights Act of 1871 (42
U.S.C. § 1983), and the doctrine recognized in Ex Parte Young, 209 U.S. 123 (1908). Plaintiffs
allege and state as follows:
NATURE OF THE ACTION
1.
1 The defined term “Defendants,” as used in this Complaint, does not include Gregory Peterson, who is named only in the official capacity of his office and is referred to separately in allegations involving the official capacity of his office.
2
Case 2:14-cv-00139 Filed 02/10/14 Page 2 of 76 Document 1 2.
3. These extraordinary circumstances call for extraordinary action from the federal judiciary. Federal courts, including the United States Supreme Court, have affirmed the principle that “investigations, whether on a federal or state level, are capable of encroaching upon the constitutional liberties of individuals” and that “[i]t is particularly important that the exercise of the power of compulsory process be carefully circumscribed when the investigative process tends to impinge upon such highly sensitive areas as freedom of speech or press, freedom of political association, and freedom of communication of ideas . . . .” Sweezy v. New Hampshire by
Wyman, 354 U.S. 234, 245 (1957). The Court should reaffirm these principles and issue preliminary and permanent injunctions ending the investigation and award damages to O’Keefe and WCFG in an amount to be determined at trial.
JURISDICTION AND VENUE
4. This action arises under the First and Fourteenth Amendments to the United
States Constitution; the Civil Rights Act of 1871, 42 U.S.C. § 1983; and the doctrine recognized in Ex Parte Young, 209 U.S. 123 (1908). Jurisdiction of the Court is conferred by 28 U.S.C.
§§ 1331, 1343(a)(3) and (4).
5. The United States District Court for the Eastern District of Wisconsin is a proper federal venue for this action because all the defendants are residents of Wisconsin pursuant to 28
3
Case 2:14-cv-00139 Filed 02/10/14 Page 3 of 76 Document 1 U.S.C. § 1391(b)(1). In addition, pursuant to Section 1391(b)(2), a substantial part of the events
or omissions giving rise to the claim occurred in Milwaukee County. Venue in the Milwaukee
Division is appropriate because the events in question have their “greatest nexus” to the counties
in that division. See In re General Order Regarding Assignment of Cases to the United States
District Judge Designated to Hold Court in Green Bay, Wisconsin (E.D. Wis. Jan. 1, 2005).
PARTIES
6. Plaintiff Eric O’Keefe is an individual who resides at his permanent address in
Iowa County, Wisconsin. O’Keefe is a veteran volunteer political activist with local and national
activities, and he engages in First Amendment-protected political speech and associational
activities in Wisconsin and nationwide, including through several independent organizations.
O’Keefe is a director of WCFG,
7. Plaintiff WCFG is a 501(c)(4) social welfare organization that promotes free-
market ideas and policies. It does this through public communications and its expressive
associations with other groups promoting conservative policies. All of its public communications
constitute “issue” advocacy—that is, none expressly urge the election or defeat of any candidate
for office—and WCFG only associates and donates money to other groups that similarly engage
in issue advocacy.
8.
Defendants’ investigation,
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Case 2:14-cv-00139 Filed 02/10/14 Page 4 of 76 Document 1 violates Plaintiffs’ rights under the First and Fourteenth Amendments to the
U.S. Constitution.
9. On information and belief, Defendant Francis Schmitz is an individual who resides at his permanent address in Waukesha County, Wisconsin.
At all times material to this Complaint, Schmitz was and is acting under color of law.
10. On information and belief, Defendant John Chisholm is an individual who resides at his permanent address in Milwaukee County, Wisconsin, and is the District Attorney of that county. In Wisconsin, District Attorney is a partisan position, and Chisholm ran for his post as a
Democratic Party candidate and has strong ties with members of that Party in Milwaukee, including with Mayor Tom Barrett, who ran for governor twice against Scott Walker. At all times material to this Complaint, Chisholm was and is acting under color of law.
11. On information and belief, Defendant Bruce Landgraf is an individual who resides at his permanent address in Milwaukee County, Wisconsin, and is employed as an
Assistant District Attorney in the Milwaukee County Attorney’s Office. On information and belief, Landgraf prosecutes cases for that Office’s Public Integrity Unit
At all times material to this Complaint, Landgraf was and is acting under color of law.
5
Case 2:14-cv-00139 Filed 02/10/14 Page 5 of 76 Document 1 12. On information and belief, David Robles is an individual who resides at his
permanent address in Milwaukee County and is employed as an Assistant District Attorney in the
Milwaukee County Attorney’s Office. As a member of that Office’s Public Integrity Unit,
At all times material to this Complaint, Robles was and is acting under color of law.
13. On information and belief, Dean Nickel is an individual who resides at his permanent address in Dane County, Wisconsin.
Defendant Dean Nickel worked under Peggy
Lautenschlager, the former Attorney General of Wisconsin from 2003 to 2007 and member of the Democratic Party, as head of the Wisconsin Department of Justice Public Integrity Unit and did not remain in that high-level position after her tenure ended. At all times material to this
Complaint, Nickel was and is acting under color of law.
14. On information and belief, Gregory Peterson is an individual who resides at his permanent address in Eau Claire County, Wisconsin, and is a retired Appeals Court Judge.
Peterson has been appointed as John Doe “Judge” and is responsible for administering the most recent John Doe proceeding in this investigation.
Peterson is a Defendant in this matter in his official capacity only, and
Plaintiffs are not seeking money damages from him. An injunction against Peterson is necessary
6
Case 2:14-cv-00139 Filed 02/10/14 Page 6 of 76 Document 1 to provide Plaintiffs adequate relief in this lawsuit, At all times material to this Complaint, Peterson was and is acting under color of law.
FACTS
I. Background
15. The investigation at issue in this Complaint is taking place against the backdrop of the most tumultuous political events in Wisconsin in generations—perhaps in history.
16. On November 2, 2010, candidates of the Republican Party won control of all branches of the Wisconsin government for the first time since 1998.
17. Contributing to this success was the growing influence of conservative independent social welfare organizations,
. These social welfare organizations published political speech, in media, including television and radio, on issues related to their organizational purposes. Around the time of the 2010 Wisconsin gubernatorial race, independent interest groups spent, according to the best estimates, a combined $37.4 million, largely for communications criticizing positions taken by the candidates.
18. Many with left-leaning views have opposed the involvement of independent interest groups like WCFG in election speech. This opposition escalated considerably after the
Supreme Court decided Citizens United v. Federal Election Commission, 558 U.S. 310, in
January 2010, which struck down regulations barring corporations from making independent express advocacy expenditures in elections as violative of the First Amendment. The Court explained that the “right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it,” and that the “First Amendment has its fullest and most urgent application to speech uttered
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Case 2:14-cv-00139 Filed 02/10/14 Page 7 of 76 Document 1 during a campaign for political office.” 558 U.S. at 339 (internal quotation marks omitted).
Demonstrating the consternation surrounding that decision among many affiliated with the
Democratic Party, the President of the United States chastised members of the Supreme Court in
attendance at that year’s State of the Union Address over the decision. This tactic was
unprecedented, as observers noted at the time.
19. Around this time, left-leaning advocates began to theorize and propose that
campaign finance theories such as “coordination” could be redefined and diverted from their
traditional scope to undermine Citizens United and offer an alternative route to preventing independent organizations from participating in elections. Another campaign finance concept recommended for redefinition was the distinction between “issue” advocacy and “express” advocacy. Left-leaning advocates have also spent considerable time and efforts theorizing of
ways to expose the names of donors to social welfare organizations in order to allow them to
become the targets of reprisals. This has led to scandals including those in the federal
government, as IRS agents have been accused of illegally leaking the names of Republican and
conservative donors around the 2012 presidential election.
20. In March 2010, in the wake of Citizens United, GAB adopted new rules expanding the meaning of “express” advocacy to include forms of political speech that had long been considered “issue” advocacy. Plaintiff O’Keefe, WCFG, and a liberal organization called
One Wisconsin Now sued in the United States District Court for the Western District of
Wisconsin to block these rules, and several other lawsuits were filed, including in state court.
Within days, upon the advice of the Wisconsin Department of Justice, GAB agreed to a settlement, recognizing that it had overstepped its legitimate authority and violated the First
Amendment. The settlement process became complicated when the court determined that
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Case 2:14-cv-00139 Filed 02/10/14 Page 8 of 76 Document 1 prudential doctrines, such as Pullman abstention, should prevent the settlement from being finalized, but GAB adopted an emergency rule and has stated that it will not enforce the March
2010 rules.
21. At the same time, the left wing of the political spectrum has continued to build up a substantial independent expenditure machinery in Wisconsin and nationwide, which rivals and, in fact, surpasses the competing conservative groups like WCFG. By the 2011 and 2012 recall races at issue in this case, these left-leaning organizations were able to outraise and outspend conservative groups in most of the relevant campaigns, and this system has allowed union money to flow freely to support Democratic Party candidates and causes in these recall elections.
22. Until his election as Governor in 2010, Scott Walker was the County Executive of
Milwaukee County. On April 24, 2009, Walker declared his candidacy for Governor of
Wisconsin.
A. Walker Proposes, and the Legislature Passes, the Budget Repair Bill Against Unusually Heated Opposition
23. During his 2010 campaign, Walker emphasized the need to reduce taxes and the size of the Wisconsin government to stimulate a dismal state economy. He criticized the 2009-
2011 state budget as being too large given the economic situation and pledged to diminish it if elected. On September 14, 2010, Walker won the Republican primary, and he was elected
Governor on November 2, 2010. He took the oath of office on January 3, 2011.
24. By early February, Walker’s new administration had projected a budget shortfall in 2013 of $3.6 billion and also determined that a budget repair bill to resolve a $137 million shortfall for the year ending June 30, 2011, was necessary. Among the critical problems
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Case 2:14-cv-00139 Filed 02/10/14 Page 9 of 76 Document 1 identified in the state budget were costs related to public employees’ pensions and health care plans. Much of the cost was the result of contracts with public sector unions.
25. The Walker administration proposed a bill (“Budget Repair Bill”) to remove the ability of public sector unions to bargain collectively over pensions and health care. The bill also proposed to limit pay raises to the rate of inflation.
26. The response to this proposal was immediate and aggressive. Thousands of protestors demonstrated in and around the capitol building in Madison.
27. The events gained extensive press coverage, and images of the demonstrations were broadcast in homes nationwide. Advocacy groups across the political spectrum recognized this controversy as an opportunity to participate in a public debate about the proper role of unions generally, the proper role of public sector unions in particular, and the proper role of government. The airwaves in Wisconsin became flooded with advertisements for and against
Walker’s budget plan, and money came from across Wisconsin and the nation. For the budget battle alone—which involved no elections—opponents of the Walker budget spent an estimated
$1.8 million and supporters spent $1.7 million.
28. For many opponents, Walker’s plan was more than a political debate and quickly became personal and vindictive. For example, the website DemocraticUnderground.com maintained a list of contributors to Scott Walker for the purpose of boycotting their businesses and otherwise harming them economically. On March 3, police discovered 41 rounds of 22- caliber rifle ammunition outside the Wisconsin state capitol, and ammunition was also discovered inside a city and county government building in downtown Madison. Protestors
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Case 2:14-cv-00139 Filed 02/10/14 Page 10 of 76 Document 1 convened at Scott Walker’s private residence in eastern Wisconsin, where his family was
residing, and also targeted private residences of legislators at various times.
29. Around this time, a liberal blogger posing as David Koch called Scott Walker to entice him into making statements suggesting coordination of publicity efforts. On March 7, the
Democratic Party of Wisconsin seized on this opportunity to file a complaint with GAB, alleging campaign coordination despite there being no legal basis for the complaint.
30. Around February 17, Senate Minority Leader Mark Miller led fourteen Senate
Democrats—in fact, every Democratic Party-affiliated member in that body—in absconding from Wisconsin. Their whereabouts were unknown for days before they were discovered to be hiding in Illinois. The purpose of their effort was to prevent the twenty-member quorum necessary under Wisconsin law to pass spending measures and thereby stall Walker’s budget plan.
31. On February 25, following sixty hours of debate, the Wisconsin Assembly, which had the requisite quorum, passed Walker’s Budget Repair Bill.
32. The Bill was sent to the Senate, which still lacked the quorum necessary to pass a spending bill. The Republicans thus stripped the spending provisions from the Bill and passed the remaining measures, which included the measures related to collective bargaining. Protests engulfed the capitol once again.
33. On March 10, the Assembly passed the Senate version.
34. On March 11, Scott Walker signed the Bill, which became 2011 Wisconsin Act
10.
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Case 2:14-cv-00139 Filed 02/10/14 Page 11 of 76 Document 1 B. Political Hostilities Escalate Further After the Budget Repair Bill’s Passage
35. The passage of the Budget Repair Bill turned out to be only the beginning of a political war in Wisconsin, as opponents continued to stretch the bounds of legality and civility in their campaign to defeat the Act and, later, Scott Walker.
36. Legal challenges to the Bill came early and often. On March 11, the day it was signed, Dane County Executive Kathleen Falk filed a lawsuit against the state, arguing that it was unconstitutionally passed. Dane County District Attorney Ismael Ozanne filed a similar lawsuit on March 16.
37. Wisconsin’s Secretary of State, Doug La Follette of the Democratic Party, refused to publish the Budget Repair Bill, to try to thwart its becoming law. The Legislative Reference
Bureau was thus forced to bypass the Secretary of State’s office and officially published the law on March 25.
38. On March 25, AFL-CIO Laborers Local 236 and Firefighters Local 311 filed a lawsuit, and on June 15, 2011, all public unions in Wisconsin joined to file a lawsuit in federal court alleging violations of Equal Protection and the First Amendment.
39. On March 18, 2011, Dane County Judge Maryann Sumi granted a temporary restraining order against the Budget Repair Bill. Subsequently, the Wisconsin Supreme Court reversed this decision, finding that it violated separation of powers and Wisconsin precedent.
40. Lawsuits, however, were not the only tactic tried. Wisconsin State Employees
Union, AFSCME Council 24, began circulating letters to businesses in southeast Wisconsin, demanding that they support “workers’ rights” by placing a sign in their windows: “Failure to do so will leave us no choice but [to] do a public boycott of your business. And sorry, neutral means
‘no’ to those who would work for the largest employer in the area and are union members.”
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Case 2:14-cv-00139 Filed 02/10/14 Page 12 of 76 Document 1 Similar threats occurred across the state. Among the many businesses targeted for boycotts were some that took no position on the Walker budget.
41. On April 1, 2011, a woman from Cross Plains was charged with two felonies for threatening to kill fifteen Republican state senators who voted for the Budget Repair Bill. She emailed them that opponents of the legislation were planning “to assault you by arriving at your house and putting a nice little bullet in your head.” By this time, the Republican caucus in the legislature had received at least a dozen credible specific death threats.
42. Demonstrations continued as before the Budget Repair Bill’s passage. We Are
Wisconsin (“WAA”) a prominent left-wing social welfare organization that rivaled or surpassed
WCFG in spending at all relevant times, sponsored demonstrations in home communities of
Republican senators. Protestors began living in tents around the capitol in a complex they called
“Walkerville.” When the Wisconsin State Assembly met to pass the 2012 fiscal year budget, an onlooker screaming “you’re F-A-S-C-I-S-T!” had to be physically apprehended. Other onlookers chained themselves to the railing.
43. Political tensions reached the highest offices in Wisconsin, demonstrating that no institution was immune from partisan feeling. On June 27, Supreme Court Justice Ann Walsh
Bradley filed a complaint claiming that fellow Justice David Prosser had placed her in a chokehold several weeks before. Other justices claimed that Bradley was the aggressor. These events occurred as the Court was ruling on the legality of the Budget Repair Bill. The event spawned two investigations, neither of which resulted in charges.
C. The Result of Political Hostilities Is Unprecedented Recall Elections
44. Legislative recall campaigns were commenced for every member of the
Wisconsin Senate who was legally eligible for a recall at the time, some being commenced even
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Case 2:14-cv-00139 Filed 02/10/14 Page 13 of 76 Document 1 before the Budget Repair Bill’s passage. Republican Senators were targeted for their support of
the Budget Repair Bill. Democratic Senators were targeted for their opposition of the Budget
Repair Bill, including their departure from the state to thwart legitimate democratic process.
These efforts resulted in actual recall elections for nine Senators. The scope of this recall effort
exceeded any precedent in United States history. The elections were held on July 19, August 9,
and August 16.
45. Advertisements engulfed the Wisconsin airwaves around the time of the recall elections and the Supreme Court race. Total independent spending around the time of the state
Supreme Court race was estimated to exceed $4.5 million, with WCFG being a top spending organization around the time of the primary in that race. Around the time of the 2011 Senate recall elections, the best estimates show that total spending reached a record $44 million, with
$34.6 million being spent by independent advocacy groups. According to Wisconsin Democracy
Campaign, Left-leaning WAW led independent groups in spending, followed by WCFG, left- leaning Greater Wisconsin Committee and Citizens for a Strong America.
46. Democrats held all their seats in the recall races, and Republicans lost two of six seats but retained control of the Senate.
47. On November 15, 2011, the Walker recall effort commenced. On November 19, the Committee to Recall Scott Walker organized an event that was advertised as being “in coordination with We Are Wisconsin, United Wisconsin, and the [Democratic Party of
Wisconsin].” Organizers hoped to obtain 600,000 to 700,000 signatures on the recall petition, which would, under Wisconsin law, trigger a recall election.
48. Once again, the turn of events resulted in a deluge of political advertisements
from groups and official campaigns trying to influence the public narrative. Both liberal and
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Case 2:14-cv-00139 Filed 02/10/14 Page 14 of 76 Document 1 conservative organizations participated, raising money from individuals, corporations, and
unions. Unions were especially important contributors, contributing millions through activist groups such as WAW. It was typical on both sides for groups to donate to like-minded groups. It was also typical for personnel to be shared between groups and donors, especially unions. For example, Marty Beil, a board member of WAW was also the Executive Director of the
Wisconsin State Employees Union, the Wisconsin Chapter of AFSCME. Kristen Krowell, the
Executive Director of WAW was also a founding director of Wisconsin Progress, which has ties to Planned Parenthood, Fair Wisconsin, and Wisconsin Progress PAC. Phil Neuenfedlt, treasurer of WAW, was also President of Wisconsin State AFL-CIO. Under Wisconsin law, contribution limitations do not apply during the signature-gathering phase of a recall election, and GAB issued a ruling confirming this principle also applied to the Walker recall effort.
49. In March 2012, GAB announced that more than 900,000 valid signatures had been collected to recall Governor Walker. On March 30, GAB voted in favor of a recall election over Walker campaign objections that possibly hundreds of the signatures were invalid.
50. Also on March 30, Milwaukee Mayor Tom Barrett announced that he would again run against Scott Walker in the governor’s race. This began a primary election cycle that
Barrett won on May 8, and in connection with which unions made record expenditures.
51. The recall election between Walker and Barrett occurred on June 5, 2012, and
Walker won by a greater margin than he defeated Barrett in 2010. Also on June 5, lieutenant governor Keefisch won her recall election, as did two incumbent Senators. One Republican won an open seat race on this day as well. One Republican Senator was narrowly recalled, resulting in a temporary swing of power in that body in favor of the Democratic Party. But in the November
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Case 2:14-cv-00139 Filed 02/10/14 Page 15 of 76 Document 1 2012 general election, Republicans gained two Senate seats, reclaiming control. And
Republicans retained the 60-39 edge in the Assembly earned in the 2010 Republican sweep.
52. According to Wisconsin Democracy Campaign of independent spending surrounding the 2012 recall election shows that a record $81 million was spent around the time of these elections. Independent groups spent $36.5 million.
53. Walker and Republican lawmakers had thus been victorious, not only the in budget battle, but also in the recall race. However, efforts to attack them politically continued.
II. The “John Doe” Investigation
54. Of the many efforts to attack Governor Walker tried by his opponents, none proved so persistent as the investigation conducted continuously for nearly four years by the
Milwaukee County District Attorney’s office under the guidance of John Chisholm, Bruce
Landgraf, and David Robles. Begun on pretextual grounds in 2010, the investigation grew into an ongoing audit of the Walker campaigns, allowing prosecutors an inside track to scrutinize actions of Walker staffers as they were taken, despite that they were unrelated to the original purported purpose of the investigation. It also allowed the Milwaukee District Attorney’s office to influence public opinion through leaks of selective information meant to embarrass Walker and his campaign. The investigation became a rallying cry for Democratic Party members and candidates and a central issue in the Walker recall right up until the election.
55.
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Case 2:14-cv-00139 Filed 02/10/14 Page 16 of 76 Document 1 A. The Milwaukee County Attorney’s Office, Which Has Initiated and Conducted the Investigation, Is Biased Against Walker and the Budget Repair Bill
56. The investigation originated in the Milwaukee County Attorney’s Office
(sometimes, “the Office” or the “DA’s Office”)
.
57. The leader of the Office was at all relevant times and is District Attorney John
Chisholm, who won that seat as a Democratic Party candidate and has been supported by unions
in previous campaigns, including in the most recent race to hold his DA position, during which
he received support from, among others, the AFL-CIO. Chisholm also is a donor to Democratic
Party candidates and, as of April 2012, had given $2,200 exclusively to Democratic and liberal
candidates, making him one of the top donors in the Milwaukee County Attorney’s Office.
58. Altogether, as of April 2012, employees in Chisholm’s office had donated to
Democratic over Republican candidates by roughly a 4 to 1 ratio.
59. During the 2011-2012 campaign to recall Scott Walker, at least 43 (and possibly
as many as 70) employees within Chisholm’s office signed the recall petition, including at least
one Deputy District Attorney, 19 Assistant District Attorneys, and members of the District
Attorney’s Public Integrity Unit.
60. Chisholm has close ties with Democratic Party members around Wisconsin and in
Milwaukee, including Mayor Tom Barrett. In 2008, just days before Democrat Tom Barrett ran for reelection as Mayor of Milwaukee, Chisholm appeared in a two-and-a-half minute clip that began and ended with the official Barrett-for-Mayor reelection screen. In the clip, Chisholm praised Barrett’s record on crime, education, and city development. Upon information and belief,
Chisholm provided other forms of support for Barrett and received similar support both publicly and privately in their respective campaigns.
17
Case 2:14-cv-00139 Filed 02/10/14 Page 17 of 76 Document 1 61. Like many public sector employment divisions, assistant district attorneys in
Wisconsin are represented by a union, which was affected by the passage of the Budget Repair
Bill in much the same way as the other public sector unions. Thus, assistant district attorneys,
like many other public sector employees had a direct, personal stake in the debates over the
Budget Repair Bill. Among other things, the Budget Repair Bill resulted in their having to contribute more to their health care and pension plans, resulting in a direct financial loss to them from the Bill. Unlike many public sector unions, which have had a difficult time recertifying after the Budget Repair Bill went into effect, the assistant district attorneys union recertified again in November 2013.
B. The Investigation Began on Pretextual Grounds and Had a Political Motive From the Beginning
62. Under Wis. Stat. § 968.26, a prosecutor may commence a special investigation, commonly known as a “John Doe” investigation, by filing a complaint with a judge and alleging that there is reason to believe that a crime has been committed. The judge in this matter, often called a “John Doe judge,” does not act on behalf of the court but serves essentially as a grand jury of one. Once a district attorney requests a judge to convene a John Doe proceeding, the judge must convene the proceeding and must issue subpoenas and must examine any witnesses
the district attorney identifies. This gives a district attorney extraordinary ability to obtain
subpoena power over private parties as part of an investigation.
63. Wisconsin law also allows a judge to impose a secrecy order over witnesses in a
John Doe proceeding. In this respect, a John Doe proceeding differs from normal practice before
a federal grand jury, where a secrecy order binds jurors and prosecutors but typically not
witnesses. According to common practice in John Doe proceedings, prosecutors who ask for
18
Case 2:14-cv-00139 Filed 02/10/14 Page 18 of 76 Document 1 secrecy orders almost inevitably receive them.
64. The investigation has lasted nearly four years, with the first phase beginning on
May 5, 2010, and ending on February 21, 2013. It was conducted by attorneys at the Milwaukee
County Attorney’s Office under the supervision of Defendant Chisholm. For purposes of opening the proceeding, the crime that the Milwaukee District Attorney’s office purportedly had reason to believe was committed related to missing money from veteran’s fund called Operation
Freedom, which was founded by Scott Walker. But Operation Freedom was never a priority of the District Attorney’s Office, which had grander plans in mind from the outset.
65. After 2006, the Operation Freedom funds were managed by the Michelle Witmer
Chapter of the Military Order of the Purple Heart (“MOPH”). In 2008, Darlene Wink, an employee in the Milwaukee County Executive’s Office identified an apparent shortfall of roughly $11,000 from funds received by MOPH from the Executive’s Office. The Executive’s
Office subsequently informed the Milwaukee County Attorney’s Office.
66. On April 23, 2009, Chief Investigator David Budde interviewed Thomas Nardelli,
Chief of Staff to Milwaukee County Executive Scott Walker, regarding the missing funds.
Nardelli told Budde that he believed that Kevin Kavanaugh, the MOPH chapter treasurer, was responsible for the discrepancy and likely had stolen over $11,000 from the funds.
67. This interview occurred over one year before the Milwaukee County Attorney’s
Office opened a John Doe proceeding for the purported purpose of investigating the discrepancy.
68. Upon information and belief, the Milwaukee County Attorney’s Office decided to
use a John Doe proceeding to investigate the Milwaukee County Executive’s Office as a means
of influencing the 2010 election in which Scott Walker was a candidate for Governor. Attorneys
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Case 2:14-cv-00139 Filed 02/10/14 Page 19 of 76 Document 1 within the Office determined that, by opening an investigation into the missing Operation
Freedom funds, they could investigate Darlene Wink’s activities on her county computer and possibly expand an investigation into Walker’s employees more generally to identify possible violations of law that could be linked directly to Scott Walker.
69. In the petition requesting the commencement of a John Doe proceeding,
Defendant Landgraf represented that a John Doe proceeding was necessary because the
Executive’s Office had not provided documentation that would allow investigators to trace the funds from Milwaukee County to MOPH and because interviewing witnesses outside a John Doe proceeding had “not yielded satisfactory results.” See Ex. A, Petition for Commencement of a
John Doe Proceeding, In re John Doe Proceeding (Wis. Cir. Ct. Filed May 5, 2010). In fact, the
County Executive’s Office, after this representation became public, denied this allegation and stated in no uncertain terms that it had made “multiple follow-ups” to the DA’s Office, since it had originally requested the investigation. Moreover, with one exception, every interview cited in the subsequent criminal complaint against Kavanaugh was with a willing witness outside the
John Doe process.
70. The purported line of inquiry cited by Defendant Landgraf was narrow: “to identify the origin of the funds transferred to the Order.” Id. Yet, within half the time between the Nardelli interview in 2009 and the commencement of the John Doe proceeding in May 2010, the investigation had turned to other issues involving Walker, his campaign, and his staff. And within two years, the investigation had turned to Walker’s gubernatorial administration in
Madison and, within three years, it had become the basis for a state-wide probe into virtually every conservative independent organization involved in Wisconsin politics.
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Case 2:14-cv-00139 Filed 02/10/14 Page 20 of 76 Document 1 71. Upon information and belief, even the purported line of inquiry had little if any
importance to the Operation Freedom investigation. The concerns from the Executive’s Office
related to what happened to the funds after they had been transferred to MOPH and had little if
any relevance to the “origin” of the funds, id., which, upon information and belief, was never in
doubt. Yet Landgraf used this pretext as an excuse for “subpoenaing county officials” and for
“examination of business records maintained by the County Executive’s office and other County
Departments,” despite that relatively few records would be relevant to and relatively few
officials would have knowledge of this narrow topic. The actual purpose of the petition was to
obtain access to county officials and documents for an open-ended fishing expedition into
Walker’s office.
72. The political potential of the investigation was apparent to Landgraf from the
beginning. In the petition, Landgraf argued that the investigation should be conducted under a
secrecy order because “publicity of allegations and inferences would be particularly unfair to the
County Executive, a man who is seeking the nomination of the Republican Party for the Office
of Governor of the State of Wisconsin in this Election Year.” Id. Under the purported basis for the John Doe proceeding, this would be unnecessary: an investigation that Walker’s Chief of
Staff invited would hardly embarrass Walker, so long as it was limited to its original purpose, and imposing a secrecy order could prevent Walker from demonstrating to the public that he was not the target and that his office had requested it—two arguments Walker had a difficult time making subsequently precisely because of the secrecy order. In fact, it was the secrecy order and the concomitant lack of public scrutiny that allowed Landgraf and others to turn the investigation against Walker, to permit selective leaks to embarrass Walker, and to prevent any substantive defense by Walker or others as the investigation became a media sensation during his recall.
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Case 2:14-cv-00139 Filed 02/10/14 Page 21 of 76 Document 1 Thus, upon information and belief, while requesting secrecy with the purported purpose of helping Walker avoid embarrassment, Defendant Landgraf made it all the more possible to embarrass him.
73. The first priority of the investigation was the county employees, and Darlene
Wink in particular, and its aims were far broader than tracing a few thousand dollars to a source that was uncontested. Nine days after the commencement of the proceeding, the John Doe judge signed a search warrant allowing investigators to search the Milwaukee County computer that
Wink used, and the warrant was executed immediately. Without delay, investigators examined her computer and had already discovered Wink’s personal email accounts in time to issue a
Preservation Letter Request the next day, May 15. Wink’s personal email accounts bore no relation to the purpose of tracing funds from the County to MOPH. Nevertheless, the John Doe judge subsequently issued a search warrant for them. Wink, like so many witnesses with information about Operation Freedom, would later testify willingly about the Operation Freedom funds, demonstrating that, had their purpose been to ascertain what she knew of the funds, investigators could simply have asked. In contrast to the one-year delay to launch an investigation into the missing funds, the few days needed to target Wink shows that Walker’s employees were of interest from the very beginning.
74. The same day as the search, the Milwaukee County Supervisor John F. Weishan,
Jr., sent a criminal complaint to Defendant Chisholm, carbon copying Defendant Landgraf. The complaint alleged that Darlene Wink was “illegally using state resources for political purposes” by posting articles favorable to Scott Walker. This amounted to “donat[ing] resources, email services, computer services, staff salary, etc., which did not belong to her for the political benefit of Scott Walker’s campaign.” In addition, the complaint alleged that Scott Walker’s campaign
22
Case 2:14-cv-00139 Filed 02/10/14 Page 22 of 76 Document 1 failed to report these illegal contributions and, in so failing, violated Wisconsin law. The complaint concluded that the Milwaukee County Attorney’s Office should investigate, not only
Darlene Wink, but also Scott Walker and his campaign. Thus, within nine days of the commencement the investigation, Chisholm and Landgraf had succeeded in their true goal: finding an excuse to conduct an open-ended investigation of Walker’s staff for the remainder of his campaign and beyond.
C. The Scope of the Investigation Immediately Broadened and Has Broadened Exponentially Ever Since
75. Chisholm, Landgraf, and their subordinates, including Defendant Nickel, followed through on that purpose. The investigation has been breathtakingly broad.
76. On May 10, 2010, GAB formally initiated an investigation into William Gardner, a railroad owner, based on a complaint by his former girlfriend that he had asked her to make a campaign contribution to Scott Walker on his behalf and with his reimbursement. Under
Wisconsin law, the venue for an eventual prosecution would have to be (and eventually was)
Washington County because of Gardner’s residency in Hartford. Nevertheless, that very month,
GAB consulted with Landgraf and they agreed that this investigation should continue in
Milwaukee County under the auspices of the John Doe investigation. The Gardner allegations were unrelated to the Operation Freedom funds, and there would be no basis for drawing a connection between the issues under investigation—unless it was already established that the
23
Case 2:14-cv-00139 Filed 02/10/14 Page 23 of 76 Document 1 investigation was aimed at individuals or groups that support Walker, who was the sole common
denominator. On information and belief, the purpose was to lend credibility to requests before
the John Doe judge to expand the investigation further into Walker, his associates, his campaign,
and his supporters.
77. On May 28, 2010, Gardner contacted GAB, agreed to cooperate, and eventually
turned over the information that would be used in the criminal complaint against him. A John
Doe proceeding was unnecessary to obtain his conviction, but served as a pretext to allow
Chisholm and Landgraf’s continue their unlawful fishing expedition into Walker’s affairs.
78. The investigation quickly turned to other employees within Walker’s office,
including through computer seizures at county offices, and by November 1, 2010, investigators
succeeded in obtaining a search warrant of another employee in the County Executive’s Office:
Kelly Rindfleisch.
79. Continuing their pattern of using the John Doe investigation for political means,
investigators executed a broad search warrant allowing them to comb through the Office of the
County Executive the day before the November 2 gubernatorial election. That same day,
investigators executed a search warrant at the home where Rindfleisch was residing on a
temporary basis. Execution of this warrant was not necessary for the investigation, as Rindfleisch did not keep any possessions there except clothes and other personal items.
80. By the end of November, prosecutors turned their investigation on Timothy
Russell, another county employee, whose computer was seized in August. The John Doe Judge authorized expansion of the John Doe proceeding on November 30, and Milwaukee authorities promptly executed a search warrant on his home on December 7. Although this raid produced nothing of value for the John Doe investigation, it uncovered wholly unrelated conduct on behalf
24
Case 2:14-cv-00139 Filed 02/10/14 Page 24 of 76 Document 1 of Russell’s domestic partner that Chisholm and Landgraf used to further justify continued expansion of the investigation.
81. Over the following year, as political tensions in Wisconsin blazed, investigators continued to dig deeper into the Walker affairs in an effort to find some evidence of criminal conduct that could influence the recall election. By December 2011, the investigation had expanded into alleged bid-rigging in connection with a competitive bidding process for office space for the Milwaukee County’s Department of Aging. The bidding process occurred in the fall of 2010, as did the events under investigation, and the tip leading to the investigation was received in the fall 2010. By December 2011, investigators were asking whether Walker’s office had improperly provided inside information to some brokers ahead of others during the bidding process. No bid was ever awarded, making the theory unlikely to succeed.
82. As of May 2012, this line of inquiry was still ongoing, and, by this time, investigators were focused on whether a Walker aide had improperly received preferential treatment in the bidding process. This line of inquiry could not have been contemplated at the outset of the investigation because the events had not yet occurred. The events at issue were entirely unrelated to the Operation Freedom funds, and the sole common denominator with the other subject matters of the investigation was Scott Walker and his supporters.
83. Upon information and belief, numerous other legal and factual avenues were also being explored and had been explored at this time, none leading to a viable prosecution against
Walker or those close to him.
84. By June 2012, finding no basis for prosecution related to the 2010 Department of
Aging office bids after months of resources had been poured into the inquiry, the County
Attorney’s Office, rather than move on, continued to search for anything that could be used for
25
Case 2:14-cv-00139 Filed 02/10/14 Page 25 of 76 Document 1 political purposes without any regard for probable cause or even reasonable suspicion. On June
18, 2012, Defendant Robles filed an open records request with the state Department of
Administration seeking communications between the agency and staffers in Governor Walker’s office at the state capitol. The request sought all communications “related to the designation and
determination of individuals as ‘key professional staff’ of the Office of Governor” since the time
Walker took office on January 3, 2011. Robles tried to disguise the purpose of the request. It was
not submitted on Milwaukee County DA letterhead and did not provide Robles’s job title. Robles
provided a personal e-mail address for the request, raising issues under Wisconsin’s public
records laws, but the possible impropriety was never investigated. Legal counsel for the
Department of Administration recognized that the request related to the official business of the
County Attorney and emailed a response to Robles’s government email account on June 27 with
a carbon copy to Kent Lovern and Hanna Kolberg of the DA’s Office.
85.
86.
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Case 2:14-cv-00139 Filed 02/10/14 Page 26 of 76 Document 1 87.
88.
89.
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Case 2:14-cv-00139 Filed 02/10/14 Page 27 of 76 Document 1 90.
91.
92.
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93.
94.
D.
95.
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96.
97.
98.
99.
30
Case 2:14-cv-00139 Filed 02/10/14 Page 30 of 76 Document 1
100.
101.
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Case 2:14-cv-00139 Filed 02/10/14 Page 31 of 76 Document 1 102.
103.
104.
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105.
106.
107.
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Case 2:14-cv-00139 Filed 02/10/14 Page 33 of 76 Document 1 E.
108.
109.
110.
111.
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Case 2:14-cv-00139 Filed 02/10/14 Page 34 of 76 Document 1 112.
113.
F. The Investigation Has Been Characterized by Prosecutorial Misconduct
114. Along with allowing prosecutors’ ongoing access to Walker-related files, the investigation provided an avenue for them to engage in intimidating behavior and harassment to achieve the goals of their politically motivated quest.
115. One such incident began in September 2010, when Christopher Brekken, owner of Rice Lake Harley Davidson in Barron County, received a subpoena seeking the credit card number used for certain purchases from his dealership on a specific date. Brekken’s dealership does not and did not maintain records of the credit card numbers of specific customers and had no way of obtaining the information. In fact, such information is protected by Wisconsin and federal law, and it would be illegal for Brekken’s dealership to maintain records of credit card numbers or obtain them from other sources. Brekken timely informed Landgraf that he had no
information in response to this request and could not obtain it. This answer did not satisfy
Landgraf, and he obtained a bench warrant for Brekken’s arrest. Brekken was arrested on
October 19, 2010 and remained in jail even after producing the basic information about the
purchases that he was legally allowed to maintain. Landgraf informed Brekken’s attorney that he
should pressure Brekken’s bank or credit card company to turn over the information, despite that
it would be illegal to do so. Brekken was finally released after he agreed to drive five hours to
35
Case 2:14-cv-00139 Filed 02/10/14 Page 35 of 76 Document 1 Milwaukee to testify before the John Doe Judge, which resulted in his providing to Landgraf the same information that he had initially provided.
116. Brekken has subsequently sued Landgraf on several civil counts, including false imprisonment and abuse of process. In a hearing in that case in March 2013, Barron County
Judge Timothy Doyle expressed his amazement at Landgraf’s behavior: “Obviously a lot of what happened here was politically motivated and not—the conduct described is nothing that we as
Wisconsinites should be proud of, bottom line . . . . Mr. Landgraf was behaving badly, probably for political reasons.”
117. Landgraf expressed his own view of the affair in November 2013 to the
Wisconsin Reporter: “What difference does it make? . . . We ultimately got the information and details we needed.” Though clearly inconsistent with prosecutorial ethics, the statement accurately describes the philosophy and modus operandi of the investigation.
118. Another incident occurred in December 2011, when Landgraf ordered that
Andrew Jenson, a commercial real estate broker, be arrested, and he was be jailed overnight.
Jensen and his real estate firm were both donors to Walker’s 2010 campaign. Defendant Robles personally undertook the task of arresting him. The incident caused a sensation in the Milwaukee papers, where Jensen’s mug shot was prominently published, and it was broadcast that criminal charges were pending.. The papers also stated that Jensen was jailed for “refusing to cooperate” with the investigation. None of this was true. Over a year later, Jensen’s attorney, with the consent and approval of the John Doe Judge, issued a short statement that his client was not a target of the investigation, that he would not be charged, and that he had “fully cooperated, and ha[d] truthfully answered all of the investigators’ questions.” Landgraf and Robles never explained their actions in light of the basis for jailing Jensen being proven false.
36
Case 2:14-cv-00139 Filed 02/10/14 Page 36 of 76 Document 1 119. The investigation also involved home raids against unsuspecting individuals that
resulted in the discovery of no criminal conduct whatsoever. In all cases, these raids were
unrelated to legitimate law enforcement purposes but were intended to intimidate and harass
persons affiliated with the County Executive’s office.
120. At dawn on September 14, 2011, around a dozen law enforcement officers,
including FBI agents, raided the home of former Walker aide Cynthia Archer in Madison. Dane
County Sheriff Dave Mahoney told reporters that one of his deputies had been placed at the
house during the search at the request of investigators from Chisholm’s office and that his office
was otherwise not involved. To this day, it is unknown what prosecutors were looking for or
what they thought they were looking for, but the evidence seized has apparently not proven
relevant to any of the crimes eventually charged. This, of course, did not prevent Archer’s reputation from being harmed in the process as collateral damage of Defendants’ search for materials to use against Walker.
121.
122.
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123.
124.
125.
126.
127.
128.
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129.
130.
131.
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Case 2:14-cv-00139 Filed 02/10/14 Page 39 of 76 Document 1
132.
133.
134.
135.
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136.
137.
138.
139.
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Case 2:14-cv-00139 Filed 02/10/14 Page 41 of 76 Document 1 E. The Targets of the Investigation Were Selected Based on Political Views and Associations
140.
141. In January of 2010, the City of Milwaukee awarded Jeff Fleming a no-bid
contract paying $75 an hour for up to 15 hours a week with benefits. Through December 2009,
Fleming had been a campaign spokesman for Mayor Tom Barrett, who was then a candidate
against Walker for the 2010 governorship. His contract was to perform public relations services
for a division of the Mayor’s office. During his time in this role, Fleming went back and forth
between county duties, private business work, and campaign work for Barrett. Among other
things, Fleming worked on speeches for Barrett, and correspondence regarding this and other
campaign activities was sent both to Fleming’s city account and his personal account. Fleming was hired again in August 22 to be a part-time spokesman for the Department of City
Development. Barrett’s Chief of Staff explained that “We knew Jeff, and were comfortable with him,” and news stories raised the concern that Fleming was working for the campaign on city time. The District Attorney’s Office did not investigate this appearance of impropriety, much less commence an open-ended investigation into Barrett’s campaign.
142. In spring 2010, the Milwaukee County District Attorney’s Office declined to prosecute a county employee named Christopher Liebenthal, who was caught engaging in
“excessive political blogging” for liberals from his taxpayer-funded computer. The District
Attorney’s Office recognized that “Mr. Liebenthal’s actions constitute an extreme example,” but stated that it would prefer to see the situation handled as a personnel matter rather than a criminal
42
Case 2:14-cv-00139 Filed 02/10/14 Page 42 of 76 Document 1 matter. The decision by Defendants Chisholm and Landgraf to treat this conduct as a personnel matter is completely different from how they treated indistinguishable conduct by Wink and
Rindfleisch. Each was charged criminally on multiple counts, and Rindfleisch was sentenced to jail time for similar conduct treated as a “personnel” matter in Liebenthal’s case.
143. In September 2010, the Milwaukee Journal-Sentinel reported that unions and
Democratic candidates were coordinating a plan to attack Scott Walker for neglecting county facilities in connection with a parking garage incident. Unions would sponsor television ads, officials would continue to call for an independent investigation, and the Democratic governor’s administration would allow state engineers to inspect the county facility.
144. On September 22, 2010, the Wisconsin Republican Party filed a formal complaint with GAB alleging illegal coordination based on comments by John-David Morgan, an SEIU
Local # 1 employee who actively supported Barrett’s campaign, to a Walker campaign member.
Morgan boasted that unions were commanding local media coverage of the campaigns and that county supervisors—he mentioned at least one specific name—were involved as well. Both the
Morgan incident and the ensuing Republican GAB complaint received coverage in the
Milwaukee Journal-Sentinel and other news sources.
145. In 2011, the Wisconsin Republican Party filed a complaint with GAB regarding
Shelly Moore, a Democratic candidate for government and a public school teacher. The complaint alleged that she used school equipment, including her computer, for her recall
43
Case 2:14-cv-00139 Filed 02/10/14 Page 43 of 76 Document 1 campaign. In a work email, published in news stories about the complaint, Moore acknowledged that she was prohibited from using public property for this purpose, but stated “I don’t frankly care.” This was reported widely in Wisconsin and around the nation. Defendants did not investigate this Moore’s conduct,
146. In July 2011, weeks before the recall election between Democratic Party challenger Shelly Moore and Republican incumbent Sheila Harsdorf, reports surfaced that We
Are Wisconsin offices were identified to be operating out of the same building offices as official
Shelly Moore campaign offices in multiple sites.
147. Also in summer of 2011, a complaint was filed with GAB against Friends of
Senator Hansen, a Democratic incumbent, alleging coordination with liberal groups. The complaint states “Any person with eyes can see after reviewing the material sent to homes, or from watching TV advertisements sponsored by these various groups, that a direct violation of campaign law has occurred.”
148. On August 2, 2011, the Republican Party of Wisconsin filed a complaint with
GAB asking for an investigation of “possible coordination” between representative Sandy Pasch and Citizen Action of Wisconsin, where Pasch serves on the board of directors.
44
Case 2:14-cv-00139 Filed 02/10/14 Page 44 of 76 Document 1 149. On November 19, 2011, the Committee to Recall Scott Walker, a left-leaning political committee subject to the same requirements under Wisconsin law as Walker’s official recall committee, including prohibitions on corporate contributions, announced a gathering to kick off the Walker recall effort. The event was widely announced as being “[i]n coordination with We Are Wisconsin, United Wisconsin, and the [Democratic Party of Wisconsin] . . . .” In fact, the Recall Committee was formed by leading Union and Democratic social welfare organization members, and the timing of the recall was carefully discussed between these members, political candidates, and nationwide Democratic Party leaders, including officials from the Barack Obama presidential campaign. In one prototypical meeting in October 2011, union leaders met with Obama’s campaign manager and deputy campaign manager for several hours to discuss the timing of the recall. Social welfare organizations such as United Wisconsin had been collecting unofficial signatures since February 2011 in preparation for the recall. United
Wisconsin registered a political action committee for the recall in March 2011. This activity was reported in November 2011 as raising questions about United Wisconsin’s “independence.”
150. On March 25, 2012, Daniel Bice of the Milwaukee Journal Sentinel reported that
Wisconsin for Falk had come “almost out of nowhere” and “blitzed” local airwaves with $1.6 million of television advertisements to favor Kathleen Falk. The name of this supposedly independent group was suspiciously similar, noted the article, to Falk’s official committee, “Falk for Wisconsin,” and the candidate appeared in the advertisements, directly staring at the camera, clearly demonstrating that Falk worked with this group to film the ads. Other advertisements
45
Case 2:14-cv-00139 Filed 02/10/14 Page 45 of 76 Document 1 produced by this supposedly independent organization include Falk voice-overs, again indicating
her involvement in creating the advertisements.
151. In May 2012, Michael Dean, on behalf of Anthony Ostry, filed a formal
complaint with GAB and with John Chisholm, alleging campaign violations by Wisconsin AFL-
CIO. The union sent advertisements constituting express advocacy by mail and was apparently
designed to fall within the “members only” disclosure exemption of Wis. Stat. § 11.21. In fact,
the mailing was clearly deficient by that statute’s guidelines, most obviously in that Ostry, who
was not an AFL-CIO member, received the document. The complaint alleges that AFL-CIO
must have known of these blatant deficiencies, indicating willful violation of the statute. No one from GAB or the Milwaukee County District Attorney’s Office ever followed up with Ostry or
Dean and no investigation occurred, must less a state-wide John Doe investigation concerning nearly thirty social welfare organizations with regard to thirteen recall elections. Defendants did not investigate this appearance of impropriety,
.
152. AFL-CIO’s annual report filed with the Department of Labor in September 2012 shows a $69,500 expenditure to the Center for Media and Democracy under Schedule 16 for
“Political Activities and Lobbying,” with the stated purpose of “Support of State Legislative
Advocacy.” But according to GAB’s records, the Center for Media and Democracy, which is a
501(c)(3), was not a registered lobbyist at the relevant time period, and top staffers of the group were not registered as individual lobbyists. Lobbying without the proper registration violates
46
Case 2:14-cv-00139 Filed 02/10/14 Page 46 of 76 Document 1 Wisconsin state law, but the Defendants did not investigate this appearance of impropriety,
153. In November 2012, the Federal Election Commission fined the Professional
Firefighters of Wisconsin and eleven former board members $58,000 for knowingly and willfully violating campaign laws and regulations. This union is also a state committee in
Wisconsin, has donated to Democratic candidates in Wisconsin (including Kathleen Falk), and has activities on the state level. Defendants did not investigate this appearance of impropriety,
154. In November 2013, the Center for Media and Democracy, a left-wing 501(c)(3) hosted a conference call between reporters and its director Lisa Graves, who is well connected with Democratic Party members in Madison, Milwaukee, and statewide. One reporter asked about the investigation and whether the same activity being investigated had occurred among liberal and Democratic groups. Graves’s response indicated that such activity did occur, but was distinguishable, she said, because “they’re advancing not just an ideological agenda but an agenda that helps advance the bottom line of their corporate interests. That’s quite a distinct difference from some of the funders in the progressive universe.”
155. Upon information and belief, numerous other activities materially identical to the activities giving rise to the manifold branches of this massive investigation have occurred within
Democratic campaigns and among left-wing issue advocacy and independent expenditure
47
Case 2:14-cv-00139 Filed 02/10/14 Page 47 of 76 Document 1 groups. Defendants did not investigate any of this conduct,
.
156.
F. The Investigation Has Had the Purpose and Effect of Influencing Wisconsin Politics
157.
In fact, information from the investigation routinely reached the public at critical times during the 2010 gubernatorial election, the 2011 budget battle, and the 2011 and 2012 recall elections. Upon information and belief, some of this information reached the public through direct or indirect selective leaks from the
DA’s Office. Other information reached the public through other avenues
. John Doe has repeatedly been a political rallying cry—and even a fundraising tool—for Democrats at each turn in influence important political events.
158. Upon information and belief, the first reports of the investigation were leaked to the press in the days following Scott Walker’s victory in the Republican primary. Thirteen days after that election, Daniel Bice of the Milwaukee Journal Sentinel gave the first public report on the investigation. Citing unnamed sources, Bice informed the public that the John Doe
48
Case 2:14-cv-00139 Filed 02/10/14 Page 48 of 76 Document 1 proceeding consisted of “two investigations,” one into Gardner’s campaign contributions and the other related to Milwaukee County employees and Darlene Wink’s resignation. The article did not mention the Operation Freedom funds, but made sure to draw connections with the upcoming gubernatorial race. The source of this information was, by necessity, direct or indirect leaks from the Milwaukee County Attorney’s Office, which operated under the control of Defendant
Chisholm.
159. The day before the gubernatorial election, investigators chose to execute search warrants into Rindfleisch’s residence and the Milwaukee County Offices, evidently with the hope of attracting some last minute John Doe attention before the election. Nothing would have prevented investigators from delaying the searches a few days until after the election.
160. In January 2012, Democratic Party Chairman Michael Tate sent out an email solicitation to supporters, asking them to give $10 “so we have the resources we need to expose
Scott Walker’s latest scandal involving more than $60,000 that was stolen from military veterans and their families.” A spokesman for state Democrats explained that “Using these facts about
Walker to motivate our base and muster resources to fight his vast sums of sleazy corporate cash is entirely appropriate.”
161. In February and the following months of 2012, Scott Walker made several disclosures related to the investigation, first, that he had hired criminal defense attorneys to represent him in the matter, next, that he had established an official criminal defense fund, and later, that he had been reimbursed for legal expenses paid from his own pocket from his campaign. Numerous articles online and in print and advertisements followed each disclosure, ridiculing Walker and calling him a corrupt government official. The John Doe investigation,
49
Case 2:14-cv-00139 Filed 02/10/14 Page 49 of 76 Document 1 thus, harmed Scott Walker politically, but the Secrecy Orders prevented him from defending himself adequately to the public.
162. On April 15, 2012, Daniel Bice reported that the John Doe investigation presented the “biggest question hanging over” the recall election. In particular, the article asked whether
Chisholm would file additional criminal charges before the June 5 election. In fact, as of three months earlier, all complaints that would ever be filed to date from the investigation had already been filed. But the investigation continued as a means of attempting to influence the outcome of the recall election.
163. On May 28, 2012, the Milwaukee Journal-Sentinel reported that the John Doe investigation had zeroed in on key evidence related to the 2010 county bidding process that implicated Scott Walker and his longtime campaign advisor John Hiller. The report quotes some inside sources, upon information and belief directly or indirectly from the County Attorneys’
Office, as calling this lead “a bombshell” and hinting that a criminal complaint might be in the works. The election was one week away.
164. On May 30, 2012, six days from the election, the Democratic Party of Wisconsin used the John Doe proceeding for further political advantage in a press release announcing that
Walker had “mistakenly” admitted that he was under criminal investigation by referencing his criminal defense fund. The press release also played up the home raids on Rindfleisch and
Archer as evidence of the severity of the matter. News coverage of this and similar advertising efforts was extensive, as reporters speculated about possible impending criminal charges against
Walker at this critical time in Wisconsin politics.
165. In the final days before the 2012 gubernatorial recall, Tom Barrett made John Doe central to his campaign. Near the end of May 2012, his campaign issued advertisements
50
Case 2:14-cv-00139 Filed 02/10/14 Page 50 of 76 Document 1 discussing the John Doe investigation and particular evidence it had uncovered and asserting that
the evidence showed criminal misconduct by the governor and his employees. These assertions
were false as there was no misconduct by the governor, but the continuing John Doe
investigation by Chisholm—who had publicly supported Barrett in past elections—lent them
improper credibility.
166. On May 31, the County Attorney’s Office indicated that it granted immunity to
Fran McLaughlin, former county spokeswoman, in the John Doe proceeding, and Tom Barrett’s
campaign issued a statement calling on Walker to “come clean with the people of Wisconsin”
and asserting that “his credibility is stretched to the limit.”
167. On June 1, in the final debate of the recall election, Barrett repeatedly used the
John Doe investigation as a line of attack against Walker.
168.
169. The first public announcement of the new phase of the investigation was on
October 21, 2013, in a Daniel Bice article in the Milwaukee Journal-Sentinel. Bice cited
unnamed sources and provided the basic facts of the investigation, including that special
prosecutor Schmitz had been appointed to run the investigation, that it had “spread to at least five
counties,” and that Defendant Landgraf had been investigating “‘all over the place.’” Much of
the activity was occurring in Madison and little information was known until rather recently, said
51
Case 2:14-cv-00139 Filed 02/10/14 Page 51 of 76 Document 1 the article. The subject matter of the investigation was events occurring since 2010, it said.
170. Around November 19, 2013, Democratic Party-affiliated Senate Minority Leader
Chris Larson and the State Senate Democratic Committee issued a fundraising appeal based on the investigation, asking donors to contribute $29 to fight against the 29 conservative groups that were under investigation.
171. When asked about the investigation, the Democratic Party Chairman was quoted as stating that “[y]ou can assume they’re finding serious acts of wrongdoing.”
172. Upon information and belief, the Defendants intend selectively to leak information from the investigation to the media
.
G. The Convictions Obtained from the Investigation Do Not Legitimize It
173. The investigation has, to date, been a complete failure. Although the Milwaukee
County District Attorney’s Office paraded six convictions around in support of its legitimacy, none of these convictions in any way implicated Walker’s staff for campaign-finance violations, the county bidding process, or Walker’s conduct of his gubernatorial administration, and, thus, the convictions can in no way legitimize these detours. Thus, the convictions are entirely unrelated to the politicized bent of the investigation—which turned up nothing
174. In October 2012, Kevin Kavanaugh was convicted of embezzlement from the funds belonging to Operation Freedom. Kavanaugh’s conviction simply represents what would
52
Case 2:14-cv-00139 Filed 02/10/14 Page 52 of 76 Document 1 have been the result of a disciplined, ethical investigation undertaken without political motivation. Although issues related to Operation Freedom were the original purpose of the first
John Doe petition, little evidence used in the criminal complaint against Kavanaugh resulted from the John Doe investigation, as all but one interview described therein was given by a willing witness without a secrecy order.
175. In November 2012, Timothy Russell pled guilty to one felony count of embezzlement for theft from the Operation Freedom funds. As with Kavanaugh’s conviction,
Russell’s conduct would have been discovered simply by investigating the Operation Freedom funds and is unrelated to the political campaign waged by the investigation.
176. In April 2011, William Gardner pled guilty to campaign-finance related violations. Although Defendants Chisholm and Landgraf used the Gardner aspects of the investigation as a pretext to turn John Doe into a political investigation, all critical evidence was gathered outside the John Doe investigation. Gardner was sentenced to community service and probation.
177. In October 2012, Kelly Rindfleisch pled guilty to one count of misconduct for doing campaign work for lieutenant governor candidate Brett Davis while at work for
Milwaukee County. She agreed to the plea because she lacked the funds to mount a legal defense and hoped to avoid jail time to care for her 88-year-old, ailing mother. At her sentencing hearing,
Landgraf falsely alleged impropriety on behalf of Scott Walker. In doing so, Landgraf disclosed materials covered by the Secrecy Order that did not relate to the case against Rindfleisch.
Rindfleisch’s conviction is not remotely related to the initial justification for the John Doe investigation and is not related to ongoing inquiries.
53
Case 2:14-cv-00139 Filed 02/10/14 Page 53 of 76 Document 1 178. In February 2012, Darlene Wink pled guilty to political fundraising in a courthouse. As with Rindfleisch, her conviction is the result of prosecutors turning peoples’ lives upside down in a politically motivated fishing expedition. Defendants Chisholm and Landgraf chose not to apply the same scrutiny to liberal individuals. Both Fleming and Liebenthal provided similar opportunities to use the power of their office to scrutinize individuals for campaign-related technical impropriety, and they declined. Meanwhile, Wink was the first channel used to launch the investigation, and her conviction does not relate to the initial justification for the John Doe investigation and is not related to ongoing inquiries.
179. In January 2013, Russell’s domestic partner pled guilty to a misdemeanor charge of contributing to the delinquency of a minor and was subsequently sentenced to 50 hours community service. There is no relationship whatsoever between this conviction and the goals or legal theories of the ongoing investigation.
III. The Investigation Is Calculated To Chill Protected Speech
180.
181.
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Case 2:14-cv-00139 Filed 02/10/14 Page 54 of 76 Document 1 182.
183. The natural and probable consequence of the investigation is therefore to chill speech and association.
IV. The Investigation Has Actually Chilled First Amendment Protected Speech and Associational Activities
184. Plaintiff Eric O’Keefe’s nationwide political activities were debilitated
, and he will continue to remain on the sidelines in Wisconsin until the investigations end.
185. Plaintiff WCFG has been sidelined entirely and has ceased all First Amendment protected activity.
186. As the investigation is ongoing throughout the 2014 legislative session and campaign period, the investigation will have the intended effect of silencing Plaintiffs in
Wisconsin during the 2014 legislative session and election cycle.
187.
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Case 2:14-cv-00139 Filed 02/10/14 Page 55 of 76 Document 1 188.
189.
190.
191.
192.
193.
194.
195.
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Case 2:14-cv-00139 Filed 02/10/14 Page 56 of 76 Document 1
COUNT I: RETALIATION IN VIOLATION OF THE FIRST AND FOURTEENTH AMENDMENTS
196. Plaintiffs repeat and re-allege the averments of paragraphs 1-195 as if fully set forth herein.
197. Plaintiffs engaged in activity protected by the First Amendment, including, without limitation, sponsoring, creating, and publishing issue advocacy relative to the Budget
Repair Bill and other issues during the 2011 and 2012 recall elections.
198. Defendants’ conduct under color of state law would deter First Amendment activity of a person of reasonable firmness and that has, in fact, deterred the First Amendment activity of Plaintiffs and others. This deprivation of Plaintiffs’ rights constitutes irreparable harm.
199. Plaintiffs’ First Amendment activity, including the particular viewpoints they expressed, was the primary or at least a substantial motivating factor in the Defendants’ decision to take their retaliatory actions.
200. As a direct result of Defendants’ violation of his First and Fourteenth Amendment rights, Plaintiffs have sustained damages in an amount to be determined at trial. The right to be free from retaliation for exercise of constitutional rights, including the First Amendment, is well established and reasonable officers in the position of Defendants would know that retaliating against Plaintiffs and others based on the content and viewpoint of their speech is unlawful.
201. Unless Defendants are enjoined from committing the above-described constitutional violation, Plaintiffs will continue to suffer irreparable harm.
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202. Plaintiffs repeat and re-allege the averments of paragraphs 1-195 as if fully set forth herein.
203. Defendants, acting under color of state law, have singled out Plaintiffs as targets for investigation, while others similarly situated were not targeted.
204. The decision to target Plaintiffs was based on arbitrary classifications, including without limitation, the exercise of their First Amendment rights and the content and viewpoint of their First Amendment protected speech. This conduct has deprived and continues to deprive
Plaintiffs of their rights under the First Amendment and the Equal Protection Clause of the
Fourteenth Amendment, causing them irreparable harm.
205. As a direct result of Defendants’ violation of the First and Fourteenth
Amendments, Plaintiffs have sustained damages in an amount to be determined at trial.
206. Unless Defendants are enjoined from committing the above-described constitutional violations, Plaintiffs will continue to suffer irreparable harm.
COUNT III: BAD FAITH EXERCISE OF PROSECUTORIAL POWER WITH NO LEGITIMATE GOVERNMENT PURPOSE IN VIOLATION OF THE FIRST AND FOURTEENTH AMENDMENTS
207. Plaintiffs repeat and re-allege the averments of paragraphs 1-195 as if fully set forth herein.
208. The Defendants’ continued investigation into Plaintiffs, under color of law, has no reasonable possibility or expectation of obtaining a lawful conviction.
58
Case 2:14-cv-00139 Filed 02/10/14 Page 58 of 76 Document 1 209. The Defendants’ investigation into Plaintiffs’ activities is in bad faith and has the purpose of retaliating against Plaintiffs for exercise of their constitutional rights, including without limitation freedom of speech and association, and has the purpose of discouraging and preventing the exercise of their constitutional rights, including without limitation free speech and association, in the future.
210. Defendants’ continued investigation into Plaintiffs has thereby deprived them and continues to deprive them of their rights under the First and Fourteenth Amendments, causing irreparable harm.
211. As a direct result of Defendants’ violation of the First and Fourteenth
Amendments, Plaintiffs have sustained damages in an amount to be determined at trial.
212. Unless Defendants are enjoined from committing the above-described constitutional violation, Plaintiffs will continue to suffer irreparable harm.
COUNT IV: INFRINGEMENT OF FIRST AMENDMENT PRIVILEGE IN VIOLATION OF THE FIRST AND FOURTEENTH AMENDMENTS
213. Plaintiffs repeat and re-allege the averments of paragraphs 1-195 as if fully set forth herein.
214.
215.
216.
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217.
218.
219. As a result of Defendants’ violation of the Fourth and Fourteenth Amendments,
Plaintiffs have sustained damages in an amount to be determined at trial.
220. Unless Defendants are enjoined from committing the above-described constitutional violation, Plaintiffs will continue to suffer irreparable harm.
COUNT V: INFRINGEMENT OF THE RIGHT OF FREE SPEECH IN VIOLATION OF THE FIRST AND FOURTEENTH AMENDMENTS
221. Plaintiffs repeat and re-allege the averments of paragraphs 1-195 as if fully set
forth herein.
222. The First Amendment protects Plaintiffs’ speech about government officials, the
conduct of state government, and other matters of public interest.
223.
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Case 2:14-cv-00139 Filed 02/10/14 Page 60 of 76 Document 1 224.
225. Unless Defendants and Peterson are enjoined from committing the above- described constitutional violation, Plaintiffs will continue to suffer irreparable harm.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court enter judgment against
Defendants and Peterson, including:
a) A finding that Defendants’ acts and conduct constitutes a violation of Plaintiffs’
constitutional rights, including those guaranteed by the First and Fourteenth
Amendments;
b) Both preliminary and permanent injunctions restraining Defendants and all those in
privity, concert, or participation with them from continuing the John Doe investigation;
c) An order relieving O’Keefe, WCFG, and others from any duty to cooperate further with
Defendants in their bad faith investigation;
d)
e)
f) Compensatory damages sustained as a result of Defendants’ unlawful deprivation of
Plaintiffs’ constitutional rights;
g) An award of the attorneys’ fees and costs and other expenses, including pre-judgment and
post-judgment interest, that Plaintiffs have been forced to incur; and
h) Any and all other relief that the Court determines is just and proper.
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Case 2:14-cv-00139 Filed 02/10/14 Page 61 of 76 Document 1 JURY DEMAND
Pursuant to Fed. R. Civ. P. 38(b), Plaintiffs respectfully demand a trial by jury of all issues triable by a jury in their Complaint.
Dated: February 10, 2014 Respectfully submitted,
/s/ David B. Rivkin
Edward H. Williams David B. Rivkin* BakerHostetler LLP Gregory L. Baker* 191 North Wacker Drive, Suite 3100 Lee A. Casey* Chicago, IL 60606 Mark W. DeLaquil* (312) 416-6229 Andrew M. Grossman* [email protected] Richard B. Raile* BakerHostetler LLP 1050 Connecticut Ave., N.W., Suite 1100 Washington, D.C. 20036 (202) 861-1731 [email protected]
Attorneys for Plaintiffs
* Admission to the Eastern District of Wisconsin pending
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